Common Law Duty of Care and the Liability of Employers For References

Subject: Sociology
Type: Informative Essay
Pages: 4
Word count: 1140
Topics: Discrimination, Justice

Issuing of reference is a fundamental practice in the career life of an individual and is equally important to both the employer and the employee. Therefore, the two parties need to not only understand their duty in relation to references but also have substantial knowledge of the extent of their liability for the same. A reference is a document detailing critical information of an employee in relation to his former or current employment (Bermingham and Brennan, 2016). Many employers, in the exercise of due diligence, rely on the information from the previous employer to make decisions during the hiring process. The employee should have a sound knowledge of the best action to take should the referencing party breach the contract per se. On the flipside, employers need to understand that, they can be aligned in court for economic damages that may be associated with the unlawful and unjust issuance of references. In this context, employers need to underscore their liabilities in regard to referencing their employees.

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Any single detail that the employer feels is important to be included in the reference in favour or against an employee conduct or behaviour, must be investigated and ascertained to be truly just and fair. Employees must have something substantive to qualify any allegation raised in the reference in the light of the subject. Employees, as well as employers, have a duty of care to provide valid and reasonable detailed description of the subject’s performance and quality in his previous employment (Sperber, 1997). Any misstatements in the reference could be detrimental to both the employee and the employer. Employers a duty of care while drawing the reference statement. Employees suffer following a breach of the duty of care or acts of omissions in relation to the same. 

Common law duty of care and references are knotted together into one complex ball, and thus it is imperative to dissect the relationship of the two by critically looking into spring v Guardian Assurance plc [1995] 2 AC 296 (HL) case. In this particular case, the ruling of the House of Lords goes that, any employer referring in regard to its employee owes a duty of care to the person being referenced. This entails making reasonable measure to ensure that the information included is verifiable and accurate. Further, the Lords ruled out that if the employee endures financial or economic loses following employer omission or breach of a duty conferred upon him, the employer must meet the liability to compensate the subject any such loses. 

Breach of duty of care is the net effect resulting from the negligent misstatement of the information regarding the subject. Negligence of information can be termed as any information that provides an exaggerated image or perception of the employee and has a potential to inflict future economic damages (Hester, 2016). In this light, information that excludes or omits critical details or overlooks some details of the subject could be detrimental. It is pointless whether the information was in favour or against the subject, the main concern is the possibility that the information could lead to economic losses if applied to make such decisions (Montague, 2013). The employers are not bound to make comprehensive information as long as it is accurate and factual. However, even is a situation where the information is correct, it must not be presented in such a way as to give the receiver a misleading perception.

In a piece of information to be included in the reference must be supported by reasonable and truthful claims.  The information should give any person of sound mind all reasonable impressions that the information is accurate. This extends to information relating to incomplete investigations of the subjects conducts (Mills, 2017). The results of such procedures should be tested and certified to be true and availed to the subject. Any such findings should be Cleary communicated to the employee to be aware that the findings will be included in the reference. Completion of the investigation process is vital as any reference made prior to the ending of the process could render the reference incorrect. In Spring v Guardian Assurance plc [1995] 2 AC 296 (HL), it was held that the employer had breached the duty of care of failure to provide accurate information regarding employees termination. In this case, the investigation regarding the termination of the subject was still underway and thus the employer had no reasonable ground to make the reference based on incomplete process.

Following the same principle of negligent misstatement, let’s have a look at McKie v Swindon College [2011] EWHC 469 (QB. When Mr. McKie, left his job at Swindon College, he was provided with a wonderful reference that enabled him to secure a position at the University of Bath. His contract required him to lease with the former employer in the cause of executing his mandate. Six years down the line, Swindon College wrote an email to the University of Bath, which saw Mr. McKie lose his job. In this context, the judges dismissed claims of untrue reference stating that the email did not suffice a reference. However, it was stated that Swindon College bleached the duty of care through negligent misstatement.

Under the same principles discussed above, universities have a duty of care in relation to the reference. However, universities are not obliged to refer to their students thus; they can opt to give professional references or not (Hester, 2016). Should the university varnish students with such document, they must be aware to observe the duty of care. In instances where allegations are made against a university such as the University of Sussex in relation to a breach contract, the court must explore a number of events to make its ruling. The court will establish any form of negligent misstatement, which constitutes a breach of contract of duty of care (Ford, 2014). The court will also judge to pinpoint if is any relationship that subsists between the plaintiff and the institution. It will also closely examine the mandate or the capacity of the university regarding a student who relies on the professional reference.  It must also establish that the reference is detrimental to the future economic status of the student. 

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Compiling the above, references are detailed information regarding employee’s previous conduct and performance. The referencing party owes a duty of care while making such information. A breach of the common law of duty and care could cause serious damage to the future economy of the employee. Charges can be drawn against any employer who provides misleading information that has the capacity to ruin a person’s career (Brennan, 2017). Any such employer is obliged by the law to compensate for the damages suffered as following untrue references.  All institutions including the University of Sussex are required to make reasonable and true information that is not contradictory in any manner. 

Did you like this sample?
  1. Bermingham, V. and Brennan, C., 2016. Tort law directions. Oxford University Press.
  2. Brennan, C., 2017. Tort Law Concentrate: Law Revision and Study Guide. Oxford University Press.
  3. Ford, R.T., 2014. Bias in the Air: Rethinking Employment Discrimination Law. Stan. L. Rev., 66, p.1381.
  4. Harris, P., 2015. An introduction to law. Cambridge University Press.
  5. Hester, K., 2016. Nanotort Liability at Common Law. In Managing Risk in Nanotechnology (pp. 117-134). Springer International Publishing.
  6. Montague, J.E., 2013. Q&A Torts 2013-2014. Routledge.
  7. Mills, P.A., 2017. Potential liability for universities and university faculty researching emerging technologies at the nanoscale.
  8. Sperber, A.J., 1997. When Nondisclosure Becomes Misrepresentation: Shaping Employer Liability for Incomplete Job References. USFL Rev., 32, p.405.
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